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Foreign Intelligence Surveillance Court Orders

On January 17 2007 the Bush Administration announced that it had let the shadowy Foreign Intelligence Surveillance Court (FISC) review the NSA's domestic spying program which was previously operated without any judicial authorization whatsoever. This Freedom of Information Act (FOIA) case seeks disclosure of the FISC's secret orders.

While claiming that the FISC has now legalized the program the Administration has refused to let anyone else see the court orders and confirm key details about what they permit. In addition to its refusal to disclose copies of the FISC orders in response to EFF's FOIA request the Department of Justice has similarly refused to make the orders available to the Senate Judiciary Committee in response to a subpoena.

Oral argument in the case is scheduled for July 26 2007 before Chief Judge Thomas F. Hogan of the U.S. District Court for the District of Columbia.

The court finds that DOJ's classified declaration provides sufficient grounds to believe that no part of the documents can be released. The court is satisfied with the classified declaration and does not feel the need to inspect the documents itself.

"At the conclusion of oral argument in this action on July 26, 2007, the Court indicated from the bench that it was granting the motion of defendant Department of Justice for summary judgment and denying the cross-motion of plaintiff Electronic Frontier Foundation for in camera inspection of the withheld agency records at issue in this case. By this motion, plaintiff apprises the Court of newly available facts relevant to the parties’ motions and respectfully requests reconsideration of the Court’s ruling."

EFF argues that the DOJ has relied upon a non-public filing to say that the documents have been reviewed to determine whether any parts can be released. EFF further argues that the judge should conduct his own examination.

The EFF argues that the DOJ has not analyzed the documents to determine whether any portions can be released without harming national security (as FOIA requires). Further, it asks the court to examine the documents itself, in secret.